# Smt. Aruna Kori v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2021) 1 ILRA 469
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-07-28
- **Case number:** Crl. Misc. Appl. u/s 482 No. 9961 of 2020
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-aruna-kori-v-state-of-u-p-anr-opp-parties-46033
- **Pages:** 6

## Headnote

(A) Criminal Law- Indian Penal Code:
Section 188 - Code of Criminal Procedure
- Section 195 - The Representation of
People Act, 1951: Section 123, 100 -
Prosecution for offence under Section 188
IPC can only be initiated by a complaint
filed by the concerned public servant and
not by police report. (Para 12)

Section 195(a)(i) Cr.P.C. bars the court
from taking cognizance of any offence
punishable under Section 188 IPC or
abetment or attempt to commit the same,
unless, there is a written complaint by the
public servant concerned for contempt of
his
lawful
order.
The
court
lacks
competence to take cognizance in certain
types of offences enumerated therein. The
legislative intent behind such a provision
has been that an individual should not face
criminal
prosecution
instituted
upon
insufficient grounds by person actuated by
malice, ill-will or frivolity of disposition and
to save time of the criminal courts being
wasted by endless prosecutions. (Para 17)

The applicants are not charged for any
other offence save Section 188 IPC. The
complaint was not filed by the concerned
Magistrate/Police Servant. The cognizance
taken thereon, by the court below is void ab
initio being in violation of the mandatory
provision
-Section
195
Cr.P.C.
The
470 INDIAN LAW REPORTS ALLAHABAD SERIES
Representation of People Act and/or the
Indian Penal Code do not provide for any
punishment
for
corrupt
practices.
The
remedy available to an aggrieved candidate
is to get the election of the returned
candidate declared void. (Para 22)

Application Allowed.(E-8)

List of Cases cited :-

## Text

1 All. Smt. Aruna Kori Vs. State of U.P. & Anr.
469

13. Perusal of the impugned show
cause notice clearly indicates that the
same has been issued on printed proforma
where proposed date of appearance and
the name of the party has been written. It
clearly indicates that such a notice has
been issued without any application of
mind and does not conform to the
statutory
provisions
of
Section
107
Cr.P.C..

14. The notice does not mention any
act or omission on the part of the applicant
which may have been considered by the
Magistrate at the time of issuance of the
notice. The material is the foundation of
the exercise of power u/s 107 Cr.P.C.
which is clearly lacking in the notice. The
notice either should clearly disclose the
material indicating the satisfaction of the
Magistrate
or
the
same
should
be
accompanied by the Police report and
other material being relied upon by the
Magistrate at the time of issuing of notice.
In the present case, both are missing and
therefore, the impugned notice does not
fulfill the prescription of law in this regard
and therefore is liable to be set aside.

15. In the light of above, the
impugned
show
cause
notice
dated
28.07.2020 (Annexure-1 to the affidavit
filed in support of application), issued by
Assistant Police Commissioner/Special
Executive Magistrate, Lucknow is hereby
set aside. It is open for the concerned
Magistrate
to
pass
fresh
order
in
accordance with law, if he so chooses.

16. With the aforesaid directions, the
application stands allowed.
----------
(2021)01ILR A469
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.12.2020
BEFORE

THE HON'BLE SUNEET KUMAR, J.

Crl. Misc. Appl. u/s 482 No. 9961 of 2020
&
Crl. Misc. Appl. u/s 482 No. 31695 of 2019

Smt. Aruna Kori ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Vijay Singh Gour, Sri Tinku Singh

Counsel for the Opp. Parties:
A.G.A., Sri Birendra Singh

(A) Criminal Law- Indian Penal Code:
Section 188 - Code of Criminal Procedure
- Section 195 - The Representation of
People Act, 1951: Section 123, 100 -
Prosecution for offence under Section 188
IPC can only be initiated by a complaint
filed by the concerned public servant and
not by police report. (Para 12)

Section 195(a)(i) Cr.P.C. bars the court
from taking cognizance of any offence
punishable under Section 188 IPC or
abetment or attempt to commit the same,
unless, there is a written complaint by the
public servant concerned for contempt of
his
lawful
order.
The
court
lacks
competence to take cognizance in certain
types of offences enumerated therein. The
legislative intent behind such a provision
has been that an individual should not face
criminal
prosecution
instituted
upon
insufficient grounds by person actuated by
malice, ill-will or frivolity of disposition and
to save time of the criminal courts being
wasted by endless prosecutions. (Para 17)

The applicants are not charged for any
other offence save Section 188 IPC. The
complaint was not filed by the concerned
Magistrate/Police Servant. The cognizance
taken thereon, by the court below is void ab
initio being in violation of the mandatory
provision
-Section
195
Cr.P.C.
The
470 INDIAN LAW REPORTS ALLAHABAD SERIES
Representation of People Act and/or the
Indian Penal Code do not provide for any
punishment
for
corrupt
practices.
The
remedy available to an aggrieved candidate
is to get the election of the returned
candidate declared void. (Para 22)

Application Allowed.(E-8)

List of Cases cited :-

1. M.S. Ahlawat Vs St.of Hary. & anr. AIR
2000 SC 168

2. Daulat Ram Vs. St. of Punj. AIR 1962 SC
1206

3. Govind Mehta Vs The St. of Bihar AIR
1971 SC 1708

4. Patel Laljibhai Somabhai Vs The St. of
Guj. AIR 1971 SC 1935

5. Surjit Singh & ors. Vs Balbir Singh (1996)
3 SCC 533

6. St. of Punj. Vs Raj Singh & anr. (1998) 2
SCC 391

7. K. Vengadachalam Vs K.C. Palanisamy &
ors. (2005) 7 SCC 352

8. Iqbal Singh Marwah & anr. Vs Meenakshi
Marwah & anr. AIR 2005 SC 2119

9. St. of U.P. Vs Suresh Chandra Srivastava
& ors. AIR 1984 SC 1108

10. Vraj Pal Singh Vs St. of U.P. & anr.
Application No. 482 No. 13876 of 2015
(followed)

(Delivered by Hon'ble Suneet Kumar,
J.)

1. Heard Sri Vijay Singh Gour,
learned
counsel
for
the
applicant,
learned
Additional
Government
Advocate (''AGA') for the State and Sri
Birendra Singh, learned counsel for
opposite party no.3/informant.

2. Learned counsel for the applicant is
permitted to make necessary corrections
during the course of the day.

3. On the consent of the parties, both
the aforesaid applications arising from the
same case crime number, based on the
same allegations, are being heard and
decided together.

4. The instant applications have been
filed under Section 482 of Code of
Criminal
Procedure,
1973
(for
short
''Cr.P.C.') assailing the charge-sheet dated
03.03.2017
and
the
consequential
cognizance order dated 19.05.2017, passed
by the Judicial Magistrate - I, Kanpur
Dehat arising from Case Crime No. 35 of
2017.

5. The facts, briefly stated, is that a
first information report (''FIR') being Case
Crime No.35 of 2017, under Section 188
I.P.C. and Section 123 (B) (2) of the
Representation of People Act, 1951, Police
Station - Rasulabad, District - Kanpur
Dehat, came to be lodged by opposite party
no.2, Pawan Kumar Rawat posted as F.S.T.
Magistrate at Assembly Area No.205,
Rasulabad, Kanpur Dehat during the Uttar
Pradesh Assembly Election.

6. As per the prosecution case,
allegation against the applicants is that
being a candidate they conducted an
election meeting/rally at a premises without
taking permission from the concerned
Magistrate/Authority. After investigation,
the Investigating Officer (''IO') filed a
charge-sheet on 03.03.2017, on which the
competent court has taken cognizance.

7. It is urged that the court below has
mechanically, without application of mind
taken cognizance, whereas, the cognizance
1 All. Smt. Aruna Kori Vs. State of U.P. & Anr.
471
is barred under Section 195(1)(i) Cr.P.C.,
wherein, it is categorically mandated that
no court shall take cognizance of any
offence punishable under Sections 172 to
188 (both inclusive) of Indian Penal Code,
1860 (''IPC'), except on a complaint in
writing of the public servant concerned or
of some other public servant to whom he is
administratively subordinate. It is further
urged that the expression ''complaint' is
defined under sub-section (d) of Section 2
of Cr.P.C., which means any allegation
made orally or in writing to a Magistrate,
with a view to his taking action under the
Code, that some person, whether known or
unknown, has committed an offence, but
does not include police report. It is further
submitted that no offence has been
provided under Section 123(B)(2) of the
Representation of People Act, 1951, that
has been made punishable under the Indian
Penal Code or under the Representation of
People Act. The remedy available to the
aggrieved candidate is by filing election
petition
under
Section
100
of
the
Representation of People Act and not by
lodging first information report. In this
backdrop, it is urged that the entire
proceedings pursuant to the charge-sheet
and cognizance taken thereon is bad in law.

8. In rebuttal, learned A.G.A. and
learned counsel for the first informant
have not disputed the facts, it is
admitted that the opposite party no.2,
the designated Magistrate appointed for
the Assembly election had filed an
F.I.R. alleging violation of prohibitory
orders. It is also admitted that pursuant
to the F.I.R., investigation was carried
out and charge-sheet came to be filed
by the I.O.

9. Rival submissions fall for
consideration.

10. Section 195 Cr.P.C. provides
for prosecution for contempt of lawful
authority
of
public
servants,
for
offences against public justice and for
offences relating to documents given in
evidence. Sub-clause(1)(a) of Section
195 Cr.P.C. reads thus: (1) No court
shall take cognizance-

(a) (i) of any offence punishable
under
sections
172
to
188
(both
inclusive) of the Indian Penal Code (45
of 1860), or

(ii) of any abetment of, or attempt
to commit, such offence, or

(iii) of any criminal conspiracy to
commit such offence, except on the
complaint in writing of the public
servant concerned or of some other
public
servant
to
whom
he
is
administratively subordinate;"

11. Section 188 I.P.C. provides for
disobedience to order duly promulgated
by public servant. Section 188 is
extracted:

"188. Disobedience to order duly
promulgated
by
public
servant.--
Whoever, knowing that, by an order
promulgated
by
a
public
servant
lawfully empowered to promulgate such
order, he is directed to abstain from a
certain act, or to take certain order
with certain property in his possession
or under his management, disobeys
such direction,

shall, if such disobedience causes
or
tends
to
cause
obstruction,
annoyance
or
injury,
or
risk
of
obstruction, annoyance or injury, to any
person lawfully employed, be punished
with simple imprisonment for a term
which may extend to one month or with
472 INDIAN LAW REPORTS ALLAHABAD SERIES
fine which may extend to two hundred
rupees, or with both;

and if such disobedience causes or
trends to cause danger to human life,
health or safety, or causes or tends to cause
a riot or affray, shall be punished with
imprisonment of either description for a
term which may extend to six months, or
with fine which may extend to one thousand
rupees, or with both."

12. On bare perusal of the legislative
intend provided under Section 195 Cr.P.C.,
it is explicit that for the offence under
Section 188 I.P.C., the prosecution can be
initiated only on a complaint filed by the
concerned public servant and not by a
police report.

13. In the facts of the case at hand,
applicants herein, are charged for offence
under Section 188 IPC and for no other
offence under the IPC. The cognizance
taken on the chargesheet would thus be
illegal and void in view of Section
195(1)(a)(2) Cr.P.C..

14. In M. S. Ahlawat v. State of
Haryana & Anr.1, the Apex Court
considered the matter at length and held as
under :

"....Provisions of Section 195 CrPC
are
mandatory
and
no
court
has
jurisdiction to take cognizance of any of the
offences mentioned therein unless there is a
complaint in writing as required under that
section."

15. In Daulat Ram v. State of
Punjab2, the Apex Court considered the
nature of the provisions of Section 195
Cr.PC. In the said case, cognizance was
taken on the police report by the Magistrate
and the appellant therein had been tried and
convicted, though the concerned public
servant, the Tahsildar had not filed any
complaint. The Court held as under :

"The cognizance of the case was
therefore wrongly assumed by the court
without the complaint in writing of the
public servant, namely, the Tahsildar in
this case. The trial was thus without
jurisdiction ab initio and the conviction
cannot be maintained......"

16. Thus, in view of the above, the
law can be summarized to the effect that
there must be a complaint by the pubic
servant whose lawful order has not been
complied with. The complaint must be in
writing. The provisions of Section 195
Cr.PC are mandatory. Non-compliance of it
would vitiate the prosecution and all other
consequential orders. The Court cannot
assume the cognizance of the case without
such complaint. In the absence of such a
complaint, the trial and conviction will be
void ab initio being without jurisdiction.

17. Thus Section 195(a)(i) Cr.PC bars
the court from taking cognizance of any
offence punishable under Section 188 IPC
or abetment or attempt to commit the same,
unless, there is a written complaint by the
public servant concerned for contempt of
his lawful order. The object of this
provision is to provide for a particular
procedure in a case of contempt of the
lawful authority of the public servant. The
court lacks competence to take cognizance
in certain types of offences enumerated
therein. The legislative intent behind such a
provision has been that an individual
should not face criminal prosecution
instituted upon insufficient grounds by
persons actuated by malice, ill-will or
frivolity of disposition and to save the time
of the criminal courts being wasted by
1 All. Smt. Aruna Kori Vs. State of U.P. & Anr.
473
endless prosecutions. This provision has
been carved out as an exception to the
general rule contained under Section 190
Cr.PC that any person can set the law in
motion by making a complaint, as it
prohibits the court from taking cognizance
of certain offences until and unless a
complaint has been made by some
particular authority or person. Other
provisions in the Cr.PC like sections 196
and 198 do not lay down any rule of
procedure, rather, they only create a bar
that unless some requirements are complied
with, the court shall not take cognizance of
an offence described in those Sections.
(vide Govind Mehta v. The State of
Bihar3; Patel Laljibhai Somabhai v. The
State of Gujarat4; Surjit Singh & Ors. v.
Balbir Singh5; State of Punjab v. Raj
Singh & Anr6; K. Vengadachalam v.
K.C. Palanisamy & Ors.7; and Iqbal
Singh Marwah & Anr. v. Meenakshi
Marwah & Anr.8).

18. In the case of State of U. P. vs.
Suresh Chandra Srivastava & Ors.9, a
bench of three judges of the Supreme Court
very
succinctly
explained
that
the
provisions of Section 195 would affect the
offences
mentioned
therein,
and
not
offences which are separate and distinct
from those contained in Section 195 CrPC
observing as under;

"The law is now well settled that
where an accused commits some offences
which are separate and distinct from those
contained in section 195, section 195 will
affect only the offences mentioned therein
unless such offences form an integral part
so as to amount to offences committed as a
part of the same transaction, in which case
the other offences also would fall within the
ambit of sec. 195 of the Code."

19. In the case at hand the applicants
are not charged for any other offence save
Section 188 IPC. The complaint was not
filed by the concerned Magistrate/Public
Servant. The cognizance taken thereon, by
the court below is void abinitio being in
violation of the mandatory provisionSection 195 Cr.P.C. (Refer: Vraj Pal
Singh vs. State of U.P. and another10)

20. Section 123 of the Representation
of People Act provides for corrupt
practices. Section 123(2) is extracted:

"Undue influence, that is to say, any
direct or indirect interference or attempt to
interfere on the part of the candidate or his
agent, or of any other person [with the
consent of the candidate or his election
agent], with the free exercise of any
electoral right:"

21. The remedy available for corrupt
practice has been provided under Section
100 of the Representation of People Act.
The grounds for declaring an election to be
void is provided therein. Sub clause (b)
provides that any corrupt practice has been
committed by a returned candidate or his
election agent or by any other person with
the consent of a returned candidate or his
election agent, the High Court shall declare
the election of the returned candidate to be
void.

22. The Representation of People Act,
and / or the Indian Penal Code do not
provide for any punishment for corrupt
practices. The remedy available to an
aggrieved candidate is to get the election of
the returned candidate declared void.

23. In view thereof, the petition
succeeds, accordingly, allowed.
474 INDIAN LAW REPORTS ALLAHABAD SERIES

24. The proceedings arising from
aforesaid Case Crime No.35 of 2017 and
the consequential congnizance order is
quashed.
----------
(2021)01ILR A474
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.12.2020

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Crl. Misc. Appl. u/s 482 No. 15581 of 2020

Krishna Kant Dixit ...Applicant
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicant:
Sri Yanendra Pandey, Sri Ramesh Kumar
Patel, Sri Prateek Kumar

Counsel for the Opp. Parties:
A.G.A.

Criminal Law - Criminal Procedure
Code (2 of 1974)- Section 156(3) -
Complaint
-
when
a
complaint/application
is
filed
before a Magistrate with allegation
that FIR is not being registered by
police
regarding
a
cognizable
offence - the Magistrate has a
discretion
either
to
direct
the
police to investigate the case under
Section
156(3)
Cr.P.C.
or
to
proceed
to
examine
the
complainant
under
Section
200
Cr.P.C. (Para 6)

C.J.M.
treated
the
application
u/s
156(3) Cr.P.C. as a complaint case &
fixed a date for recording of the
statement of complainant under Section
200 Cr.P.C. - Held - no material on
record
to
indicate
that
judicial
discretion exercised by Magistrate was
either arbitrary or perverse - merely
because another view was possible it
would not be an occasion for the High
Court
to
substitute
the
judicial
discretion exercised by the Magistrate -
Order not liable to be quashed. (Para 7)

Dismissed. (E-4)

List of Cases cited:-

1. Smt. Mona Panwar Vs High Court of
Judicature at Allahabad 2011 (2) ALJ 445

2. Swayam Prabha Vs St. Of U.P. & anr.
2012 (1) ALJ 204

3. Rameshbhai Pandurao Hedau Vs St. of
Guj.AIR 2010 SC 1877

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard Sri Yanendra Pandey,
learned counsel for the applicant as well as
learned AGA for the State and perused the
record.

2. The instant application has been
filed by the applicant with a prayer to
quash the order dated 22.7.2020 passed by
Chief
Judicial
Magistrate,
Agra
in
Application No.251 of 2020 (Krishna Kant
Dixit vs. Nikhil Agarwal and others) under
Section 406, 418, 420, 467, 468, 471, 472,
120B, 504, 506 IPC, Police Station Hari
Parwat
District
Agra,
whereby
the
application under Section 156(3) Cr.P.C.
has been treated as a complaint case and a
date has been fixed for recording of the
statement of complainant under Section
200 Cr.P.C.

3. Learned counsel for the applicant
submits that the order passed by the learned
Magistrate has been passed in a mechanical